Economic Liberty Jeopardizes Other Freedoms
legal reasoning—especially when it comes from the country’s highest
court—is similar to an urban legend. Once launched into the world
of legal precedent, bad reasoning gets stripped down to a pithy slogan,
then repeated over and over again until everyone accepts it as a truth
beyond questioning, even when it’s fallacious.
That’s what happened to the concept of “economic liberty” 22 years ago,
when Canadian courts were first wrestling with the then relatively new
Charter of Rights and Freedoms.
In a 1989 case, three justices of the Supreme Court of Canada raised
doubts about whether economic liberty should be considered part of the
“life, liberty and security of the person” guarantee of the
Charter. However, they said it was too early in the history
of Charter jurisprudence to decide the issue definitively.
A year later, Justice Antonio Lamer (writing only for himself and
not for the other five members of the Supreme Court) roundly rejected
economic liberty as an American concept.
Although the court never explicitly decided the issue, the
stripped-down mantra _ “Canada’s constitution doesn’t protect economic
liberty,” was launched. It has been repeated time and again in
Canadian courtrooms over the past 22 years, especially in cases denying
individuals the right to pursue their chosen occupations free from
onerous regulations. Justice Lamer’s urban legend fits in well
with the prevailing mythology that Canada has always been a more
collectivist, less individualistic country than the U.S.
But some Canadians have recently started re-examining both the
historical record and the logical rationale for this position. It
turns out that a few members of the 1989-90 Supreme Court may have
overlooked some interesting precedents and historical facts.
Way back in 1909, for instance, the B.C. Supreme Court said, in a case
called R. v. Chong:
“Among the normal rights which are available to every British subject
against all the world are…the unmolested pursuit of one’s trade or
occupation and…to one’s own property.” [Emphasis added.]
This paragraph was quoted approvingly by other B.C. courts in 1939 and
1949. Apparently, the notions of economic liberty and property
rights were viewed by some Canadians, through at least four decades, as
integral components of our law.
In his 1999 book Globalization and the Meaning of Canadian Life,
economist William Watson points out that virtually every major
incursion by the state on a free economy was implemented first by the
U.S., then mimicked by Canada much later. The U.S. enacted its
first income tax law in 1862 versus Canada’s in 1917. The U.S.
established a government-controlled central bank 22 years before we
did. Social Security preceded the Canada Pension Plan by 31
years. Protectionist tariffs, unemployment insurance, and major
public works projects such as railway-building were all pioneered by
the Americans and copied later by Canadians.
Brian Lee Crowley’s bestselling 2009 book Fearful Symmetry points out
that Roosevelt’s New Deal, which Justice Lamer characterized as
virtually rescuing the U.S. from its “controversial” history of
economic liberty, was denounced by the Liberal premier of Quebec,
Louis-Alexandre Taschereau, as “a socialistic venture bordering on
communism.” Other Canadian politicians and opinion-makers of the New
Deal era likewise deplored the idea of social programs, preferring to
foster the traditional culture of individual self-reliance.
Laissez-faire, far from being alien to the Canadian scene, was actually
the predominant philosophy for most of the country’s first
But deference to tradition is not the only reason why economic liberty
deserves re-examination by Canada’s courts. In the 22 years since
interpreters of the 1989-90 Supreme Court decisions began crossing
economic liberty out of Canadian law, empirical evidence has
accumulated establishing that economic liberty goes hand-in-hand with
all the other liberties that Canadians hold dear.
Several international organizations publish indices ranking the
countries of the world according to the degree of freedom their
citizens enjoy. Some, like Canada’s Fraser Institute, focus on
economic freedom. Others, like Reporters Without Borders, focus
on freedom of the press. Still others focus on political rights and
civil liberties. Readers can see four major indices charted, side by
side, in a Wikipedia article entitled “List of freedom indices”, here: http://tinyurl.com/4fsymxu.
The correlation is unmistakable. The countries that have the
greatest economic freedom also overwhelmingly have the greatest freedom
of the press, the greatest civil liberty, and the most democratic
It’s not hard to understand why this happens. Economic freedom
promotes prosperity. For instance, in the 2010 index “Economic
Freedom in the World”, countries in the top quartile of economic
freedom had an average per-capita GDP that was more than 8 times the
average per-capita GDP of the countries in the lowest economic freedom
quartile. The economically free countries also had significantly longer
life expectancy, less corruption, and even lower murder rates than the
People want prosperity. Consequently, they want economic
freedom. If a government tries to deprive them of it, they will
protest vociferously; they will try to vote the bastards out; if all
else fails, they will leave. A government can maintain economic
regimentation only by quashing freedom of expression, stifling
democracy and prohibiting emigration.
Compare the communist state of North Korea, whose people are starving,
walled in, hushed up and brainwashed or intimidated into worshipping
their dictator, with economically free South Korea whose people are
prosperous, free to emigrate, free to vote, and (relatively) free to
Anyone who values the other rights and freedoms protected by Canada’s
Charter should realize that denying economic liberty jeopardizes all
The Canadian Constitution Foundation hopes to debunk the urban legend
by bringing claims for economic liberty back into Canada’s
courts. The Supreme Court in particular needs a fresh opportunity
to reconsider its troublesome historical musings and to clarify that
liberty does—indeed, must—include economic liberty.
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